CJEU - Judgment in Joined Cases C‑148/13 to C‑150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014

Monday, December 8, 2014

Facts of the case: The facts of the case relate to three third country nationals who had applied for asylum on the basis that they feared persecution on account of their homosexuality. In all three cases the Staatssecretaris and later the Rechtbank’s-Gravenhage had rejected the applications, surmising that the individuals’ statements concerning their homosexuality were vague, implausible and lacked credibility. On appeal the Dutch Raad van State had doubts as to whether, in light of the Charter, certain limitations were placed on national authorities when verifying the sexual orientation of an applicant. In this manner the Raad van State decided to stay the proceedings and to refer the following question to the Court of Justice.

Question referred for a preliminary ruling

 ‘What limits do Article 4 of [Directive 2004/83] and [the Charter], in particular Articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?’

Consideration of the question referred

Rejecting the submission by the applicants that assessments of sexual orientation should be based solely on the individuals given declarations, the CJEU does, however, note that Article 4 of Directive 2004/83 (Qualification Directive) read in light of the Charter places certain limits on authorities when assessing the facts and circumstances concerning the applicants declared sexual orientation. Notably, the Court highlights that whilst Article 4 of the Qualification Directive is applicable to all claims of international protection, it is necessary that the competent authorities modify their methods of assessing evidence so as to comply with requirements of the Charter [54]. This is particularly pertinent for the two stage assessment procedure advocated in C‑277/11 M.M whereby after the establishment of factual circumstances a legal appraisal of the evidence must take place[55].

With regards to the present proceedings the Court surmises that the assessment of asylum applications “solely on the basis of stereotyped notions” does not satisfy the individualised assessment needed to comply with Article 4(3) of the QD and Article 13(3(a) of the  Procedures Directive. However, the court when referring to “stereotyped notions” seems only to include questions relating to the applicants knowledge of local NGOs advocating LGBTI rights, thus restricting itself solely to the facts of the referred cases. Additionally, the Court only rules out decisions that are based uniquely on stereotyped notions, confirming that “questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purpose of assessment”[62].

The Court continues its assessment by noting that questions by authorities relating to the details of the applicant’s sexual practices are contrary to the respect for private and family life enshrined in the Charter and that the submission of tests or evidence to demonstrate homosexuality have no probative value and would infringe Article 1 (human dignity) of the Charter [64-65]. In this manner the Court states that the conclusion would still be the same if the applicant voluntarily produced such evidence. The CJEU states that this may also lead to other applicant’s feeling pressurised to submit similar evidence[66].

Lastly, the Court holds that not declaring homosexuality at the outset to the relevant authorities can not result in a conclusion that the individual’s declaration lacks credibility. In this regard, the Court notes that whilst the QD refers to the applicant submitting all elements as soon as possible to substantiate his/her claim, it is incumbent on the national authorities to cooperate with the applicant when assessing the relevant elements of the case and to have regard to the sensitive nature of the claim [56]. In this manner the applicant’s reluctance to detail aspects of his/her personal life should not be taken as a lack of credibility [69]. Instead, national authorities are obliged, in light of the Qualification and Procedures Directives, to carry out an individualised assessment taking into account the applicant’s personal circumstances and to conduct the interview in view of the applicant’s vulnerability [70].                                                      

5 December 2014                                      

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Assessment of facts and circumstances
Inhuman or degrading treatment or punishment
Sexual orientation